My husband is from Mississippi and was previously married and divorced in that state. His three children stayed with his ex-wife but no formal custody or child support arrangements were ever made. They have been divorced for four years and he has paid child support to her monthly. His son is 13 years old and came to stay with us two weeks ago due to problems and emotional turmoil he was experiencing with his mother with the agreement that he would stay here for two weeks, at which time he could decide if he wanted to permanently live with us or return to Mississippi. The two weeks is now up and my step son desires to stay with us permanently, however his mother is demanding we return him to Mississippi against his wishes. He is very distressed by the situation but his mother is threatening to sever ties between my husband and his other kids. What legal rights does my husband have?
State/Country relating to question: Colorado
Do I understand correctly that there is absolutely no order regarding custody from the divorce?
Your husband can petition the court for a custody order, but would have to do so in Mississippi, since the child has only been living in Colorado for 2 weeks. Given the child's age, the court would take his opinion into account along with other evidence of what is in his best interest. By contrast, I imagine the child is enrolled in school in Mississippi, and disrupting his schooling at this time in the year may not be in his best interest. The outcome really depends on the totality of the circumstances.
I caution you against simply keeping the child with you in Colorado without obtaining a court order of custody. You do not want to run afoul of parental kidnapping or custodial interference laws. Although parents of children that do not have a custody order are generally presumed to have equal rights to the children, I have never heard of a case in which parents are divorced without the court making some order of custody. Your husband should look at his divorce paperwork carefully and contact a local family law attorney to discuss the situation as soon as possible.
If we are concerned about his emotional state and fear that sending him back to Mississippi may lead him to hurt himself, would it be of any benefit to contact social services so they can petition the courts to keep him here until a custody order can be drafted? My step-son is hysterical and does not want to return to Mississippi.
If you legitimately fear for his safety, that is grounds to obtain an emergency award for custody. You can do this petition in Colorado. You can contact Social Services, but they would not petition for custody on your husband's behalf. He has to do that himself or with the help of an attorney.
Is there a way to do that over the weekend as his mom is demanding we put him on a plane today, or is Monday soon enough? Can she do anything to us if we deny her requests to send him home today, given our concerns?
The courts aren't open until Monday. You will have to start then. The mother may try to get the local police involved, but the police likely won't touch this in the absence of a court order regarding custody, and as long as your husband isn't hiding the child at a location unknown to your wife with the intent of depriving her of coming to see the child.
If Colorado gives my husband an emergency order of custody, will we then have to go to Mississippi to get final custody approval or will Colorado then have jurisdiction?
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